The Centre for Comparative Constitutional Law & Administrative Law and the Constitutional Law Society at National Law University Jodhpur are delighted to announce a joint initiative – a National Seminar titled ‘Constitutionalism in Contemporary Times’ to be held virtually (CISCO WEBEX) on 23–24th September 2023. The deadline for the abstract submission is 14th August 2023. This seminar aims to provide a platform for legal scholars, practitioners, academicians and students to engage in thoughtful discussions and deliberations on pressing contemporary issues within constitutional law. By bringing together diverse perspectives and expertise, the seminar seeks to foster an enriching exchange of ideas, critical analysis and novel insights into the evolving landscape of constitutional jurisprudence.
Objectives of Seminar
The objectives of the seminar are as follows:·
To promote an enriching discussion and discourse on contemporary issues in the field of constitutional law.
To encourage comprehensive research and understanding of the evolution of Constitutional issues over time.
To impart and expand the knowledge of students and scholars on various issues and a critical understanding of the same.
Encourage students to develop independent thought, depth of knowledge, clear reasoning, critical analysis and persuasive styles.
Facilitate academic exposure to participants by organising discussions and facilitating interactions between participants and experts.
Themes
Papers are invited on the following themes:
Gender Equality and Constitutional Reforms
Democratic Governance and Political Justice
Socio-economic Rights as pathways to inclusivity
Boundaries and Changing Perspectives on Judicial Activism
Transformative Constitutionalism
Submission Guidelines
Participants are encouraged to submit abstracts that reflect the core argument of the paper in clear terms with a maximum of two authors per submission.
The abstract shall be within 300 words. At least five keywords must be highlighted.
The abstract shall contain the names, email addresses and designations of the authors.
Formatting guidelines: font: Times New Roman; font-size: 12; justified; line space: 1.5.
We solicit participation from academicians, advocates, researchers, and PhD scholars in the field of law. The seminar is not open to undergraduate law students or LL.M. students. The registration fees for the seminar shall be Rs. 1,000 payable on the acceptance of abstracts.
Contact Details
For queries or clarifications with respect to the Seminar, feel free to reach out at seminar@nlujodhpur.ac.in
For additional support, reach out to their organising team –
Convenor Sayantani Bagchi Assistant Professor, Faculty of Law Faculty Advisor, Centre for Comparative Constitutional Law and Administrative Law Constitutional Law Society National Law University Jodhpur Contact- +91-8902297150
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
Administrative Discretion: What It Is and What It Means
Administrative discretion is the combination of the phrases administrative and discretion. It refers to the discretion that the administration uses to carry out its duties. We’ll talk about discretion first, then we’ll highlight administrative discretion. Discretion is the capacity to make choices.
Or, to put it another way, the authority to act by their intelligence. Regarding his property, each person is free to donate, sell, or otherwise dispose of it as they see fit. He can make a will if he decides he wants his property to pass down through his ancestors. He can sell his land if he chooses not to pass it down to his ancestors. Nobody is allowed to impede his independence.
Administrative discretion differs from individual discretion. There is no constraint on personal choice. However, administrative discretion means they have the freedom to choose among the available possibilities.
Lord Cock – Understanding the difference between truth and lies, right and wrong, and reasonable and outrageous behaviour is the science of discretion. They must not carry out their tasks out of self-interest or to satisfy their desires.
The Supreme Court stated in State of Punjab v. Khan Chand[1]that the question of specifics must be left in the hands of the authorities working by an enactment due to the complexity of the issues that a modern state must deal with. For the sake of exercising the powers granted to them by an enactment, the relevant authorities must be provided discretion.
In governance and law, administrative discretion is the main source of creativity. All administrative actions must be conducted with great caution. It shouldn’t, however, be allowed to run unchecked lest it become arbitrary and undermine the fundamentals of the rule of law.
Administrative discretion is required
When Dicey created the concept of the rule of law, the laissez-faire philosophy was in vogue. The upkeep of peace and order was the sole responsibility of the police state at the time. More and more nations adopted the idea of a welfare state as the philosophy of laissez-faire fell out of favour over time, and there was a pressing need for both social and economic progress. It is now hard to create a government that can run smoothly without giving the executive discretionary power, whether in communist or capitalist regimes.
Motives for the Growth of Discretionary Powers
The growth of administrative discretion is due to a variety of factors. Some explanations are provided below.
Today’s administration has challenging and numerous issues that cannot be resolved by a single rule.
Because the majority of those issues are brand-new and are emerging for the first time, a general rule cannot be applied to them.
Although it is not always feasible to predict every issue when it does arise and cannot be resolved under the circumstances, administrative authorities must be contacted.
Each situation has a unique set of circumstances, thus applying one rule to them all could result in injustice.
Administrative authorities are free to use their authority as they see fit, given the situation. They can create and put into practice a variety of rules to address problems that arise abruptly. But once the administration has addressed every issue and changed the exercises and guidelines in those puzzles. It might lead to a lot of problems, some getting worse—
No one may be aware of the regulation that will be applied in his case.
Because every situation of the same nature will be handled under different rules, it will be a blatant violation of Article 14, Right to Equality.
Administrative officials might abuse their discretion in some circumstances.
The administrative authority must be chosen as a general rule based on the aforementioned arguments.
Administrative authorities must be used equally in all of their tasks, whenever practicable. If it doesn’t continue, it can not only lead to administrative violence but also lose the public’s faith. When using administrative discretion, the administration must take into consideration how comparable situations have been handled in the past; otherwise, this would constitute discrimination and put many barriers in the way of inclusive progress.
Indian system of administrative discretion
India has also adopted the welfare state philosophy; thus it was important to grant the administration discretionary powers because there was only one body that could perform all tasks.
Government participation and interference in all public activity that was done after this notion was adopted. The state now considers the development of the public and the state. Before it, the state performed ministerial duties and thought primarily about itself. It wasn’t interested in any public issues. Now that the state is beginning to consider the general people and their facilities, it has placed the full weight of all obligations on the administration. But without the ability to make decisions, it was impossible.
Administrative officials thought they needed the ability to make decisions immediately. They are powerless to act without it. Therefore, the state granted them discretionary powers. However, no contemporary government can run effectively without giving administrative officials some degree of discretion. The occurrence of specific events or the emergence of specific unanticipated situations determines whether or not action is necessary. They must occasionally be decided, and the administrator must reply by making use of the authority delegated to her.
The Supreme Court had ruled that with regards to the administrative discretion granted by law. The exercise of discretion is anticipated to be fair, just, and reasonable; it cannot be motivated by personal desires or interests. It must not be speculative, arbitrary, or illogical. It must fall within the parameters that are reasonable for a genuine individual.
Indian Constitution and Administrative Discretion
If a law is passed by a capable legislature, it cannot be contested on the grounds of purported bad motives or enigmatic intents. Any statute that grants discretion to the executive must include restrictions on how that discretion may be used. Our constitution contains several clauses that deal with discretion. The highest Executive in India is the President. He used a lot of his discretion. If he determines that any of the conditions listed in Article 352 have arisen, he may declare a national emergency. He has the authority to enact and enforce laws. When there is no majority party, he has the authority to dissolve the Lok Sabha. He is free to create the government at his discretion. Additionally, he has the authority to commute sentences or grant pardons to anyone who has been found guilty of crimes under Articles 72 and 161. A state may also be governed by him as president under Article 356. But there are some limitations to all of these powers. These are not random acts of nature. Even the judiciary has used some discretion; when judges sentence guilty parties, they have control over whether to impose a fine, an incarceration term, or both.
Judicial Control
The entire body of law governing the judicial supervision of administrative discretion is predicated on the idea that the courts, who have the final say in controlling the discretionary powers granted to the administration, are where democracy begins. The absence of judicial oversight of administrative activity may encourage executive overreach. The principles of democracy and the idea of the rule of law would be violated in such a situation.
In the case of Kesavananda Bharti v. State of Kerala[2], it was decided that judicial control is not only a crucial component of the Indian Constitution but also an element of its fundamental framework, which cannot be altered even through a constitutional amendment. The foundation of judicial oversight of administrative action is the idea that all authority must be exerted within the bounds of the law. The courts do not get involved in administrative decisions unless they are arbitrary or otherwise in violation of the Constitution. The courts have appellate and supervisory jurisdiction when deciding whether an administrative action is legal.
Judicial oversight of the discretionary administrative powers
Because the English parliament is supreme, no statute may be challenged by the judiciary on any basis. No statute can be subjected to judicial scrutiny by a court. However, the court can limit administrative discretion under specific circumstances, including abuse of discretion and supra vires.
The United States of America shares India’s practice of judicial review. The court cannot impose its views instead of using discretion in both countries. For the proper application of the Rule of Law, it must be under control. Administrative discretion must be used by the law, not individual discretion. If the administration is given complete freedom to carry out outsider duties, a dictator may be in place. Therefore, it’s important to limit administrative discretion.
Judiciary’s Function and Administrative Discretion
To limit discretion, the court has adopted many new concepts recently. These justifications successfully exercise discretion. These guidelines are the ultra-vires doctrine and the misuse of administrative discretion, an improper motive, an irrelevant factor, malice, unreasonableness, a violation of protocol, and administrative discretion.
In the case of Ram Manohar Lohia v. State of Bihar[3], the authority was permitted to hold a person under the defense of India provisions to maintain public order. The petitioner was detained to stop him from engaging in a way that might harm the upkeep of law and order. The court overturned the detention order. The court held that the notion of law and order was more expansive than the notion of public order.
In Air India v. Nargesh Meerza[4], the issue at hand was the legality of a service regulation put out by Air India that called for the termination of an air hostess’ employment upon the occurrence of her first pregnancy.
The regulation was deemed by the Supreme Court to be highly arbitrary, illogical, offensive to the ideals of a civilized society, and interfering with the natural progression of human nature. It is not a disability, but rather a normal side effect of marriage and an unchangeable aspect of married life. Therefore, it has been demonstrated that administrative discretion is necessary today and that its monitoring is essential. Judicial review is a useful tool for managing it. The judicial assessment of administrative discretion thus has this additional dimension. Everyone is protected from discrimination by Article 14.
Conclusion and Recommendations
Although it must be granted, administrative discretion must be constrained. And a limitation needs to be put in place. It implies that a process should be set up for the administration. So let me highlight a few ideas that are provided below.
Administrative personnel cannot achieve their goals without judgment. They are unable to realize the welfare notion, hence the state must grant discretion but not access.
Some constraints (restrictions) should be put in place when the state grants discretion.
The discretion must be removed while adhering to these limitations.
The language of the legislation, which grants discretion, must be unambiguous and explicit.
Any person who suffers a discretionary injury must be given compensation.
Discretion must be subject to court review on more than just a few grounds, such as mala fide intent, arbitrariness, discrimination, and irrelevant consideration. Likewise on legitimate grounds. because there are more and more problems every day.
Administration in a welfare state cannot function effectively without discretion. It is a requirement for the exercise of authority. But it’s also necessary to set boundaries and standards.
Administrative discretion becomes unconstrained and unchecked. Power corrupts, and absolute power corrupts totally, as Aristotle correctly observed. Discretion fosters innovation in government. All administrative decisions must be made with discretion, but to safeguard the notion of the rule of law in administration, it is also necessary to impound decisions and control discretion, lest instances of injustice go unreported and unpunished.
Even though exercising discretion is essential to running the administration, this cannot be done in its entirety. If discretion is unconstrained, authoritarian rule and the rule of law will cease to exist in the nation. No policy can be carried out in the nation without discretion. Democracy won’t be realized if total discretion is granted.
Endnotes:
State of Punjab v. Khan Chand, AIR 1974 SC 543
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709
Air India v Nergesh Meerza & Ors, 1981 AIR 1829
This article is authored by Karan Gautam, a student of Delhi Metropolitan Education.
